Media Mentions

An op-ed by Noah Feldman. What if the National Rifle Association is right that the no-fly list shouldn’t be used for denying people guns, as President Barack Obama has urged and Connecticut Governor Dannel Malloy has said he will do? If you’re a liberal, the very idea may seem absurd -- but in fact there’s an important constitutional issue at stake. The problem isn’t that gun-sales restrictions are unlawful in themselves. It’s that the no-fly list is a black box full of errors, featuring limited opportunity for redress. Whether you like it or not, gun possession is a constitutional right under the Second Amendment -- unlike flying. That means we need to decide whether the government can restrict that right based on a determination of dangerousness that occurs with a very unusual form of due process.

An op-ed by Noah Feldman. In the U.S., we tend to say that the cure for hate speech is more speech: If you don’t like what Donald Trump has to say about Muslims, speak out, or vote against him. Other democracies do it differently, and many make it a crime to incite racism and violence. This approach sometimes seems appealing -- but it’s also difficult to apply, as the Israeli Supreme Court showed this week when it declined to order the prosecution of the authors of a Jewish law book that arguably constitutes religious hate speech.

An op-ed by Cass Sunstein. Behavioral science has become the usual term for psychological and economic research on human behavior, often designed to explore people’s biases and blunders. For that research, 2015 has been a banner year, with an unusually large number of important books. Five of them stand out -- and two of these weren’t even written by social scientists.

Last month, demonstrators at Johns Hopkins University interrupted Alan M. Dershowitz as he was giving a fiery speech defending Israel. The disruption normally would not have fazed Mr. Dershowitz, a former Harvard Law School professor who thrives on controversy and relishes taking on opponents in and out of the courtroom. The protesters, however, were not challenging his Middle East politics. Instead, they held up a sign reading, “You Are Rape Culture.” Mr. Dershowitz knew what it meant. A decade ago, he had defended a friend, a money manager named Jeffrey E. Epstein, after authorities in Palm Beach, Fla., found evidence indicating that he was paying underage girls to give him sexual massages. The lawyer led a scorched-earth attack on the girls and, with a team of high-priced lawyers, cut a plea deal for Mr. Epstein that the local police said was too lenient. Over a five-decade career, Mr. Dershowitz has represented some of America’s most prominent criminal defendants, including O. J. Simpson, Leona Helmsley, Mike Tyson and Claus von Bulow. Now, he finds himself on the other side, in a legal battle to clear his own name. At 77, he is struggling to absorb a bitter lesson — that choosing the wrong client can exact its own cost.

An op-ed by Jonathan Hiles `16. If you didn’t known that HLS had a seal, much less one honoring a vicious slaveholder, and reacted by thinking, “That’s messed up, why don’t we change that?” (or words to that effect), then we come from common ground. It has taken me some reflection, aided by the fiery reasoning of Royall Must Fall, to realize this issue’s importance. The omnipresence of racial hierarchy is such that its signs are rarely noticed or rebuked. This has long been the case with the HLS seal. While such neglect is troublesome, it has also meant that the racial subtext of the Royall seal is not an accurate reflection of HLS. However, it would become much more of one if, in spite of the pain and protests it causes, HLS still clung to this valueless symbol.

Bill Barlow, a third year student at Harvard Law School, won’t shy away from challenging student activists who are demanding the school erase any references to its slaveholding founder and insisting that students be forced to take classes taught from the Critical Race perspective. Yet Barlow, who is white and grew up north of Los Angeles, is unique in the sense that he’s the only student to publicly question recent demands by student activists. “A lot of students don’t agree with the protesters,” Barlow said during a recent interview. “But they feel like they can’t speak their minds, and that’s becoming a problem here.”...Barlow’s roommate, fellow third year student Michael Shammas, recently helped launch a new Law Record op-ed series named #HLSUntaped, referring to a Nov. 19 incident in which portraits of black professors in Wasserstein Hall were found taped over with black tape. Campus police are treating the incident as a hate crime. Shammas, who said Wednesday he thinks the movement has sparked a valuable discussion about race and added that he believes there are “entrenched racial problems” on campus, wrote a column defending his decision to publish Barlow’s op-eds.

...The morning brought lectures on fiduciary law given by two prominent law professors from Harvard and Yale...Chatty and colloquial, Harvard professor Robert Sitkoff, touted as the youngest in law school history to win an endowed chair, broke the ice by referring to "fiduciary" as the F-word...The key takeaways from the lectures included Sitkoff's statement that the way to insure that an adviser acts in a client's best interest is via fiduciary law.

An op-ed by Jeannie Suk. This is a piece on a subject about which I may soon be prevented from publishing, depending on how events unfold. Last month, near the time that CNN broadcast the documentary “The Hunting Ground,” which focuses on four women who say their schools neglected their claims of sexual assault, I joined eighteen other Harvard Law School professors in signing a statement that criticized the film’s “unfair and misleading” portrayal of one case from several years ago...But last week the filmmakers did more than understandably disagree with criticism of the film, which has been short-listed for the Academy Award for best documentary. They wrote, in a statement to the Harvard Crimson, that “the very public bias these professors have shown in favor of an assailant contributes to a hostile climate at Harvard Law.” The words “hostile climate” contain a serious claim.

An op-ed by Amy Woolfson LL.M. `16. Politics in New York City can be grisly: In 1986 Queens Borough President Donald Manes was accused of receiving a $36,000 bribe from a would-be city contractor. Manes was found dead before he could be prosecuted, having apparently stabbed himself in the heart. This, and a host of other scandals, led to calls for reformed campaign finance laws. So in 1988, New York City passed legislation establishing the New York City Campaign Finance Board (CFB)...The CFB was founded out of an honorable intention – to tackle corruption in one of the world’s greatest cities. But after 27 years it could be argued that it has simply replaced one form of corruption with others.

An op-ed by Noah Feldman. The last time affirmative action was before the Supreme Court, in 2013, Justice Anthony Kennedy, the court’s swing vote, didn't want to decide the case, and the court sent it back to the court of appeals. Now, with campuses across the country roiled by racial debate and protest, the timing for a decision on the controversial issue is worse. And sure enough, at oral argument Wednesday, Kennedy strongly hinted that he'd like to send the case back -- this time to the trial court to develop the record and find more facts.

An op-ed by Albert W. Alschuler and Laurence H. Tribe. Federal law bars billionaire Robert Mercer from giving as much as $6,000 to Ted Cruz’s presidential campaign. Thirty-nine years ago, in Buckley v. Valeo, the Supreme Court upheld limits on contributions to candidates. But federal law did not block Mercer from giving $11 million to a super PAC whose mission is to urge voters to support Cruz. A federal statute formerly limited contributions to super PACs to $5,000, but in 2010 a federal court held this statute unconstitutional...No sane legislator would vote in favor of our regime of campaign financing, and no legislator ever has. The United States has this topsy-turvy regime because the federal courts have held that the First Amendment requires it.

...The Food and Drug Administration sees lab-developed tests as the Wild West of medicine, citing examples of inaccurate tests it claims put patients at risk. The agency is trying to toughen its supervision next year after largely leaving the business alone for decades and focusing most of its oversight on traditional testing methods. Lab-developed test providers are fighting back. They say their tests are accurate and even lifesaving. Industry officials say heightened regulation could stifle innovation...Also on the industry’s side are Laurence H. Tribe, a constitutional law professor at Harvard University, and Paul D. Clement, a former U.S. Solicitor General who now is in private practice and a lecturer at Georgetown University Law Center. They say the FDA “lacks the statutory authority to regulate laboratory-developed testing services,” according to a report earlier this year paid for by the trade group.

In an unusual move, Takeda Pharmaceuticals asked a federal appeals court to rule that a Native American tribal court does not have jurisdiction over a lawsuit which could expose the company to enormous liability. The effort marks the first time that a drug maker has taken such a step, according to experts, and underscores the risks facing the pharmaceutical industry amid a proliferation of lawsuits filed by patients who claim they were harmed by medicines...“Indian tribes are independent sovereigns and not subject to federal court review, except on the huge question of whether they have legal jurisdiction in the first place,” said Robert Anderson,[Oneida Indian Nation Visiting Professor of Law,] who heads the Native American Law Center at the University of Washington in Seattle. “So they could be sued by, perhaps, thousands of other people. And these companies fear liability in tribal court.”

As Harvard Law School students continue to advocate for a list of demands they say will improve the school’s treatment of minority students, a group of 25 Law faculty and staff published a letter Wednesday commending the student activism...The Law faculty and staff were not the only ones commenting on the recent developments at the Law School—another group of students launched a website called “Responsible Speech at HLS” that is critical of some aspects of Reclaim Harvard Law School’s demands. The online letter, supported by 16 signatories, most anonymous, argues that some of the demands—like curriculum change—could stifle academic freedom and discourage alternative viewpoints. “We think some of the demands would have a chilling effect on dialogue and would actually be unproductive,” said William H. Barlow, a Law student who helped launch the site. In an emailed statement, Alexander J. Clayborne, a third-year Law student, said he and student activists were encouraged by the faculty and staff’s letter, which was posted on the website of the Systemic Justice Project. Clayborne declined to comment on the “Responsible Speech at HLS” letter.

Last Friday, students and staff critical of race relations at Harvard Law School issued a long list of demands to Law School Dean Martha L. Minow, insisting that she present a “strategic plan” for their implementation by 9 a.m. last Monday morning. When that unreasonable timeline was unmet, more than 100 students gathered to protest her supposed failure to address their concerns. The demands, made by a newly organized group called Reclaim Harvard Law School, are for major institutional changes...that cannot be met in a weekend. They can’t even be considered properly in that timeline...In an email to affiliates Monday, Minow described the Law School as “a community of many voices and hopes,” going on to write that the school has “an obligation to provide and protect the opportunity for all to participate, speak and be heard.” Hers is the right attitude.

Donald J. Trump and Hillary Clinton said this week that we should think about shutting down parts of the Internet to stop terrorist groups from inspiring and recruiting followers in distant lands. Mr. Trump even suggested an expert who’d be perfect for the job: “We have to go see Bill Gates and a lot of different people that really understand what’s happening, and we have to talk to them — maybe, in certain areas, closing that Internet up in some way,” he said on Monday in South Carolina. Many online responded to Mr. Trump and Mrs. Clinton with jeers, pointing out both constitutional and technical limits to their plans...“The academic in me says that discourse norms have shifted,” said Susan Benesch, a faculty associate at Harvard’s Berkman Center for Internet & Society and the director of the Dangerous Speech Project, an effort to study speech that leads to violence. “It’s become so common to figuratively walk through garbage and violent imagery online that people have accepted it in a way. And it’s become so noisy that you have to shout more loudly, and more shockingly, to be heard.”

An op-ed by Noah Feldman. On Tuesday, the Supreme Court heard oral arguments on whether states' drawing of legislative districts should be based on total population, as it is now, or voter population, as some conservatives want. The case, Evenwel v. Abbott, raises a fundamental question about who is represented in our democracy. But as so often happens, the oral argument took a turn in the direction of our history with a focus on the drafting of the Constitution.

U.S. Democratic presidential candidate Hillary Clinton detailed plans on Wednesday to crack down on companies that shift profits overseas, a practice known as earnings stripping. Clinton is spending this week explaining how, if elected president in November 2016, she would address tax-avoiding “inversion” deals in which a company buys or merges with a foreign rival and relocates on paper to lower its U.S. tax bill...The Treasury Department, after a wave of inversion deals, announced new regulations in September 2014, targeting certain tax-avoidance deals. The regulations did not take on earnings stripping directly, but the department reserved the right to make any future regulation retroactive to that date."That was a signal to me that they thought they could do something by regulation," Harvard Law School lecturer Stephen Shay said in an interview. Shay said the "sentiment in the tax community today is yes there is regulatory authority to do something" about earnings stripping. Shay has written on the topic and has spoken to Clinton's campaign in recent weeks.

For roughly the first two years of its existence, Munchery, an on-demand food preparation and delivery service, classified its drivers as independent contractors. They were not covered by minimum wage and overtime laws, and were not eligible for unemployment insurance or workers’ compensation. Then, in 2013, it reversed course and made its drivers full-blown employees. In addition to those various protections, they received health benefits if they worked at least 30 hours per week. The about-face suggests an ambiguity in the status of workers at Munchery and other on-demand companies like the car-hailing services Uber and Lyft...But even these hard cases often are not necessarily as hard as they initially appear. Benjamin I. Sachs, a Harvard law professor who is a former union official, notes that the drivers may only need to be paid from the point at which they have agreed to pick up a particular rider.

An op-ed by Tommy Tobin '16. Many of us are going home for the holidays. So too are members of Congress. They have fewer than 10 working days to handle the nation’s business before their long winter recess. One of Congress’s most pressing concerns should be to fulfill its constitutional role and fill the gaping vacancies on the federal bench. While Congress travels home this holiday season, more than 60 seats are left vacant on the federal judiciary. With more than 400,000 cases filed in federal court each year, current judges must cover the gaps left by these open seats. For nearly 30 judgeships, the burdens facing jurists are so great that the Administrative Office of the U.S. Courts has declared a judicial emergency. The stress facing federal judges may have real-world consequences.

It was a galactic head fake from one of Harvard’s eminent legal scholars. Cass Sunstein wowed a crowd at Harvard Law School during a talk on his love for one of the 20th century’s cultural touchstones: “Star Wars.” Sunstein, the Robert Walmsley University Professor, said the film that spawned both prequels and sequels — including “Star Wars: The Force Awakens,” out Dec. 18 — was a seminal source of inspiration in his life and career. “I became a political science major only because of those ‘Star Wars’ movies. You saw those movies, and you had to focus on political science,” said Sunstein, adding that his love of behavioral science grew out of his fascination with the film’s storm troopers. He said that Supreme Court Associate Justice Thurgood Marshall, for whom he clerked after law school, was his substitute for the film’s all-knowing mentor, Ben Obi-Wan Kenobi. Then, Sunstein let his listeners in on his joke.